Continuous use and documentary evidence establish easementary rights, which cannot be negated absent sufficient rebuttal, and failure to object to expert reports implies acceptance.

JUDGMENT

Being aggrieved by the Order of dismissal, dated 25.02.2011 passed in A.S.No.18 of 2009 by the Sub-Court, Vaniyambadi, the defendants have preferred this Second Appeal.

2. Parties are indicated herein as per their litigative status and ranking before the trial Court.

3. Case of the plaintiffs is that the deceased 1^st plaintiff's father and the defendants are pangalis. Defendants no.1 and 2 and one T.B.Ramasami Pillai are the sons of Bala Muthu Mandiri of Thekkupattu Village, Vaniyambadi Taluk as joint family. They lived till 1968 and thereafter, they orally partitioned their joint family properties in or about 1968. The suit property and the other properties fell to the share of T.B.Ramasami Pillai. Similarly, properties were allotted to the defendants herein. During said partition, it was mutually agreed by T.B.Ramasami Pillai and the defendants have the right of way and channel right and right to go to the pumpset shed to get water for agricultural purposes. From the date of the said partition, the defendants and T.B.Ramasami Pillai are enjoying the above said rights of cart track, right to take cattles, right to take water through channel and go to the pumpset shed to take water without any hindrance.

4. It is the further case of the plaintiffs that the said T.B.Ramasami Pillai executed the registered gift deed in favour of the plaintiffs on 04.05.1977. The gift was accepted and acted upon by the plaintiffs and they are in possession and enjoyment of the suit schedule properties and enjoyed the cart track right, to take cattles, right to take water through channel, right of way and right to go to the pumpset shed. These plaintiffs enjoyed the rights which were enjoyed by the donor namely T.B.Ramasami Pillai. The gift deed also indicates about the said rights of the plaintiffs. T.B.Ramasami Pillai mortgaged the property on 20.04.1971 to one Ammakannammal of Tekkupattu Village and in the said document also mention is made about the said right of the 1^st plaintiff's father. Thus, for the past 25 years, the plaintiffs' predecessor in title and thereafter the plaintiffs have been enjoying the rights of cart track and other rights as mentioned supra.

5. The said cart track access in the land in S.No.92, Tekkupattu Village and land belongs to one Muthuachari vagaiyara and thereafter it passes through the lands in S.No.93/5 which belongs to the 2^nd defendant. The cart track passes through the land in S.No.93/6 and it belongs to the 1^st defendant and ends in the lands of the plaintiffs.

6. The plaintiffs and the defendants are in enmical terms. The defendants are creating trouble to the plaintiffs and restraining the plaintiffs from using the cart track. The plaintiffs have got a right of easements to use the cart track way and the said easementary right is easement of necessity. Hence the suit was filed for declaration of easementary right in the suit cart track and for permanent injunction.

Schedule of property details:

7. Contending contra, it has been averred by the defendants that in fact oral partition was effected in the year 1963 itself among one Bala Muthumandiri and his sons namely T.B.Ramasami Pillai and the defendants herein. It is true that the respective parties have been in possession and enjoyment of their respective shares without any let or hindrance. I